Effective October 1, 2003, the general concept of collaborative law was given statutory life through Article 4 of the General Statutes of North Carolina, Sections 50-70 through 50-80. Collaborative law was officially established as an alternative to the judicial disposition of issues arising out of a civil family law action (except for claims for absolute divorce).
A collaborative law proceeding is defined by statute as a proceeding where a husband and wife, contemplating separation or divorce, and their attorneys, use their best-faith efforts to attempt to resolve the disputes on an amicable basis without having to resort to judicial intervention except to the extent necessary to approve settlement agreements and sign orders to effectuate the agreement.
The attorneys agree that they will not, in turn, file any litigation on behalf of their clients, and the clients accept the model of resolving their issues without having to go to court. The statute requires a written agreement between the parties and their attorneys. A collaborative law agreement must be in writing, signed by all parties and their attorneys and must include provisions for the withdrawal of the attorneys involved in the event that the collaborative procedure does not result in a settlement of the dispute (N.C.G.S. § 50-72).
A valid, executed collaborative law agreement tolls (holds in abeyance) any applicable statute of limitations, filing deadlines or other time limitations imposed by law or court (hearing dates, trial dates, discovery deadlines and other scheduling orders) (N.C.G.S. § 50-73).
In an ongoing civil action, the filling of a collaborative law agreement stops the procedure with the court and the court shall take no action in the case, including a dismissal, unless the court is notified that the parties have either failed to reach an agreement, voluntarily dismissed the action or asked the court to enter an order or judgment incorporating the agreement of the parties (N.C.G.S. § 50-74).
A collaborative law agreement is entitled to the full faith, credit and force of a court-ordered judgment upon the request by the parties (N.C.G.S. § 50-75). In the event the parties fail to reach a collaborative law agreement, either party may file a civil action unless the collaborative law agreement provides for the use of arbitration as an alternative dispute resolution. If a pending civil action has been stayed (held in abeyance), then the court is then given notice that a settlement agreement has not been reached and the court pursues the regular litigation course.
If a civil action is filed pursuant to this section, the attorneys involved in the efforts at collaborative law cannot be the attorneys for the parties in the actual civil proceeding and shall withdraw as attorney of record (N.C.G.S. § 50-76).
Collaborative law proceedings are confidential and are not admissible in any court proceeding. Any statements, communications or work-products (exhibits, charts, graphs) or any other written or verbal communications or analysis by third-party experts are included in this privilege and are inadmissible evidence (N.C.G.S. § 50-77).
Collaborative law agreements also incorporate the alternative dispute resolutions including mediation and/or binding arbitration to reach the settlement of any disputed issues that cannot be resolved by agreement. This is a sensible way to resolve any impasses without the whole process breaking down. For instance, if the parties need to get an evaluation of a piece of real estate that they cannot agree on, then they can agree to an abbreviated arbitration process wherein an experienced real estate appraiser would be chosen to conduct a hearing and take evidence and enter into a binding arbitration ruling on the question of value. This process of incorporating alternate dispute resolutions is incorporated in N.C.G.S. § 50-78.
In the unlikely/unfortunate event of death of one party to the collaborative law proceeding, the proceeding can continue and does not have to abate by having the personal representative of the deceased party’s estate continue the collaborative law proceeding (N.C.G.S. § 50-79).
In an attempt to recognize the social utility and financial practicality of promoting collaborative law as an alternative means of dispute resolution, the North Carolina General Assembly and Legislature have given teeth and legitimacy to a collaborative law agreement properly structured between two experienced collaborative law attorneys.
Anyone who is involved in a potential or ongoing court fight over matters of equitable distribution (property settlement), custody, alimony, child support and any other financial issues should seriously consider collaborative law compared to the mutually assured financial and emotional self-destruction that can be involved in a protracted, bitter court fight.
At the end of the day, collaborative law allows the divorcing parties to direct their focus and their resources less on the fight and more on the fix.
If you have any further questions about engaging in the collaborative law process and working out the dissolution of your marriage, contact M. Douglas Berry, Family Law and Divorce Lawyer at www.gabrielberrywestonlaw.com